How Judges Think

How Judges Think

Richard A. Posner

HARVARD UNIVERSITY PRESS Cambridge, Massachusetts London, England 2008

Copyright © 2008 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America A Caravan book. For more information, visit www.caravanbooks.org Library of Congress Cataloging-in-Publication Data Posner, Richard A. How judges think / Richard A. Posner. p. cm. Includes index. ISBN-13: 978-0-674-02820-3 (alk. paper) 1. Judicial process. 2. Judicial process—United States. I. Title. K2300.P67 2008 347′.012—dc22

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Contents

Introduction PART ONE

1

THE BASIC MODEL

1

Nine Theories of Judicial Behavior

19

2

The Judge as Labor-Market Participant

57

3

The Judge as Occasional Legislator

78

4

The Mind of the Legislating Judge

93

PART TWO 5

THE MODEL ELABORATED

The Judicial Environment: External Constraints on Judging

125

6

Altering the Environment: Tenure and Salary Issues

158

7

Judicial Method: Internal Constraints on Judging

174

8

Judges Are Not Law Professors

204

9

Is Pragmatic Adjudication Inescapable?

230

PART THREE

JUSTICES

10

The Supreme Court Is a Political Court

269

11

Comprehensive Constitutional Theories

324

12

Judicial Cosmopolitanism

347

Conclusion

369

Acknowledgments Index

379 381

Introduction In my youthful, scornful way, I recognized four kinds of judgments; first the cogitative, of and by reflection and logomancy; second, aleatory, of and by the dice; third, intuitive, of and by feeling or “hunching”; and fourth, asinine, of and by an ass; and in that same youthful, scornful way I regarded the last three as only variants of each other, the results of processes all alien to good judges.1

Ivan Karamazov said that if God does not exist everything is permitted, and traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a “government of laws not men,” the “rule of law” as celebrated in the loftiest Law Day rhetoric, and so forth) does not exist everything is permitted to judges—so watch out! Legalism does exist, and so not everything is permitted. But its kingdom has shrunk and grayed to the point where today it is largely limited to routine cases, and so a great deal is permitted to judges. Just how much is permitted and how they use their freedom are the principal concerns of this book. These concerns have been made especially timely by the startling (to the naïve) right turn by the Supreme Court in its latest term (ending in June 2007).2 The turn resulted from the replacement of a moderately conservative Justice (O’Connor) by an extremely conservative one (Alito), and so underscores the question of the personal and political elements in judging and thus of the sense in which the nation is ruled by judges rather than by law. If changing judges changes law, it is not even clear what law is. 1. Joseph C. Hutcheson, Jr., “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision,” 14 Cornell Law Quarterly 274, 275–276 (1929). 2. Linda Greenhouse, “In Steps Big and Small, Supreme Court Moved Right: A 5–4 Dynamic, with Kennedy as Linchpin,” New York Times, July 1, 2007, § 1, p. 1.

1

2

Introduction

I feel a certain awkwardness in talking about judges, especially appellate judges (my main concern), because I am one. Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology. At the same time, I am struck by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors, who have never been judges3—and even by some judges. This unrealism is due to a variety of things, including the different perspectives of the different branches of the legal profession—including also a certain want of imagination. It is also due to the fact that most judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices.4 There is also the sense that judging really is a different profession from practicing or teaching law, and if you’re not in it you can’t understand it. I remember when I was appointed receiving a note from a court of appeals judge in another circuit with whom I was acquainted, welcoming me to “the club.” This book parts the curtains a bit. The difficulty outsiders have in understanding judicial behavior is due partly to the fact that judges deliberate in secret, though it would be more accurate to say that the fact that they do not deliberate (by which I mean deliberate collectively) very much is the real secret.5 Judicial deliberation is overrated. English judges traditionally did not deliberate at all, as that would have violated the ruling principle of “orality,” whereby everything that judges did had to be done in public so that their behav3. A notable example is Harvard law professor Henry Hart’s time-and-motion study of Supreme Court Justices: Henry M. Hart, Jr., “The Supreme Court, 1958 Term: Foreword: The Time Chart of the Justices,” 73 Harvard Law Review 84 (1959), which I discuss in chapter 10. 4. Robert Keeton, a federal district judge and before that a Harvard Law School professor, acknowledged in his treatise on judging that judges make “value-laden” rulings. Robert E. Keeton, Keeton on Judging in the American Legal System 15 (1999). But he did not explore the sources of those values. His treatise has no index entry for either “politics” or “ideology.” 5. Though a pretty open one. “When I first came on the court [the U.S. Court of Appeals for the District of Columbia Circuit], I imagined that conferences [on cases] would be reflective, refining, analytical, dynamic. Ordinarily they are none of these. We go around the table and each judge, from junior to senior, states his or her bottom line and maybe a brief explanation. Even if the panel is divided, the discussion is exceedingly crisp. The conference changes few minds. Assignments are made, life goes on.” Patricia M. Wald, “Some Real-Life Observations about Judging,” 26 Indiana Law Review 173, 177 (1992). Chief Justice Rehnquist described Supreme Court conferences similarly. See chapter 10.

Introduction

3

ior could be monitored;6 hence those seriatim opinions that baffle the American law student and perhaps the English one as well. In almost all cases a brief discussion among the judges before deciding enables convergence on a single majority opinion in lieu of a separate opinion by each judge. The confidentiality of the judicial process would not matter greatly to an understanding and evaluation of the legal system if the consequences of judicial behavior could be readily determined. If you can determine the ripeness of a cantaloupe by squeezing or smelling it, you don’t have to worry about the produce clerk’s mental processes. But the consequences of judicial behavior are often more difficult to determine and evaluate than the consequences even of other professional services, such as medicine. Many of the decisions that constitute the output of a court system cannot be shown to be either “good” or “bad,” whether in terms of consequences or of other criteria, so it is natural to ask whether there are grounds for confidence in the design of the institution and in the competence and integrity of the judges who operate it. The secrecy of judicial deliberations is an example of professional mystification. Professions such as law and medicine provide essential services that are difficult for outsiders to understand and evaluate. Professionals like it that way because it helps them maintain a privileged status. But they know they have to overcome the laity’s mistrust, and they do this in part by developing a mystique that exaggerates not only the professional’s skills but also his disinterest.7 Judges have been doing this for thousands of years and have become quite good at it—so good as to have achieved a certain opacity even to their fellow legal professionals, including law professors as well as practicing lawyers. Judges have convinced many people—including themselves—that they use esoteric materials and techniques to build selflessly an edifice of doctrines unmarred by willfulness, politics, or ignorance. There is nevertheless considerable dissatisfaction with our legal system,8 as there is with our system of health care. Like health care, law is 6. Robert J. Martineau, Appellate Justice in England and the United States: A Comparative Analysis 101–103 (1990). 7. Richard A. Posner, The Problematics of Moral and Legal Theory, ch. 3 (1999). 8. See, for example, Philip K. Howard, The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom (2001); Walter K. Olson, The Litigation Explosion: What Happened When America Unleashed the Lawsuit (1991).

4

Introduction

said to be too expensive (it certainly costs more per capita than the legal systems of the nations with which we tend to compare the United States), too intrusive into private and commercial life, too prone to error, too uncertain, and simply too large (the nation has a million lawyers). For these reasons it is contended to be a source of immense indirect costs on top of the expenses to the litigants. The accusations may be true, though assessing their truth is not the project of this book and is especially daunting because it is even harder to estimate the benefits of our legal system than its costs. Legal rights are options that may have value even if never exercised, but how to value such options? And legal duties deter harmful conduct—but how effectively is extremely difficult to determine too. Supposing the criticisms have merit, the question is whom to blame. If all that judges do is apply rules made by legislatures or the framers of the Constitution (or follow precedents, made by current or former judges, that are promptly changed if they prove maladapted to current conditions), then the responsibility for the mess (if it is a mess) must lie with the legislators or the Constitution’s framers, or with the political process more generally. But suppose that most rules laid down by legislative bodies are all right and the problem is willful judges—judges who make up their own rules, or perhaps ignore rules altogether, instead dispensing shortsighted justice on the basis of the “equities” of each case, and as a result create enormous legal uncertainty. The policy implications and hence the path of reform would depend on which explanation was correct (both might be). And what if the basic problem is that the structure of American government, and the American political culture more broadly, compel judges to make rather than just apply rules of law? What looks to the critics of the judiciary like willfulness might actually be the good-faith performance of a vital judicial role, and if judges refused to play it, insisting instead, as some legal thinkers urge (the “legalists,” of whom more shortly), on limiting themselves to passively applying rules made elsewhere, the legal system might be worse than it is. The answers are bound up with issues of judicial behavior. To illustrate, everyone will agree that contracts are vital to the operation of markets, and almost everyone will agree that the legal enforcement of contracts is important to the efficacy of contracts. Contract law is administered by judges. (Sometimes they are private judges—arbitrators—

Introduction

5

but the effectiveness of arbitration depends on the enforceability of arbitrators’ awards.) Being a part of the common law, it is also created by them. The law they create and the way in which they enforce it are deliberate acts, just as business decisions and decisions by legislatures are deliberate acts. Whether judicially made doctrines and decisions are good or bad may depend therefore on the judges’ incentives, which may in turn depend on the judges’ cognition and psychology, on how persons are selected (including self-selected) to be judges, and on the terms and conditions of judicial employment. Similarly, American antitrust law is far more the creation of judicial decisions than of antitrust legislation: the most important antitrust laws are as skimpy and vague as most provisions of the Bill of Rights. We ought therefore to be interested in how antitrust law has been shaped by the motivations, constraints, and other influences that play on judges. The Supreme Court has actually called the Sherman Act “a common-law statute,”9 and common law is of course made by judges, not legislators. The judicial mentality would be of little interest if judges did nothing more than apply clear rules of law created by legislators, administrative agencies, the framers of constitutions, and other extrajudicial sources (including commercial custom) to facts that judges and juries determined without bias or preconceptions. Then judges would be well on the road to being superseded by digitized artificial intelligence programs.10 But even legal thinkers who believe passionately that judges should be rule appliers and unbiased fact finders and nothing more do not believe that that’s how all or even most American judges behave all the time. Our judges have and exercise discretion. Especially if they are appellate judges, even intermediate ones, they are “occasional legislators.” To understand their legislative activity, one must understand their motivations, capacities, mode of selection, professional norms, and psychology. Achieving a sound understanding of judicial behavior is thus of more than merely academic interest; it is a key to legal reform. Yet its academic interest is also considerable because of the unusual incentives and constraints, so unlike those in most jobs, that shape judicial behavior, espe9. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2720 (2007). 10. I do not know why originalists and other legalists are not AI enthusiasts.

6

Introduction

cially in the U.S. federal system, and because the analysis of that behavior may offer insights into the general subject of managing uncertainty.11 Uncertainty is as salient a feature of our legal system as expense is of our medical system, and decision making under uncertainty is a deservedly important topic in economics, organization theory, and other fields. Like other writing by judges about judging, this book is heavily influenced by my own judicial experience, consisting of more than a quarter century as a federal court of appeals judge (seven years as chief judge of my court), with occasional forays into the district court to preside at trials, mainly civil jury trials. But the mode of the book is scholarly rather than confessional. In this respect it resembles my book on the regulation of sexuality, a subject otherwise remote from the study of judicial behavior. That book was motivated by my “belated discovery that judges know next to nothing about sex beyond their own personal experience, which is limited,” and one of my aims was to “bring to the attention of the legal profession the rich multidisciplinary literature” on the subject.12 Judges, like other “refined” people in our society, are reticent about talking about sex, but judges are also reticent about talking about judging, especially talking frankly about it, whether to their colleagues or to a larger professional audience. This reticence makes the scholarly study of judicial behavior at once challenging and indispensable. The book emphasizes positive rather than normative analysis—what judges do, not what they should do—but I do discuss normative issues and propose a few modest reforms, as well as making occasional suggestions for further research. Positive and normative analysis cannot easily be separated when one is dealing with people’s deliberate actions, for unless they are evil or cynical people, the best explanation for their actions is unlikely to be that they are deliberately flouting the norms of their society. If it is deeply wrong for a judge to base a decision on the flip of a coin, an aleatory theory of judicial behavior is unlikely to be sound. The grounds of a judge’s decisions may be wrong, but they are 11. About which I have written at length in relation to catastrophic risk and also to the reform of the U.S. intelligence system. See my books Catastrophe: Risk and Response (2004); Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005); Uncertain Shield: The U.S. Intelligence System in the Throes of Reform (2006); Countering Terrorism: Blurred Focus, Halting Steps (2007). 12. Richard A. Posner, Sex and Reason 1, 4 (1992).

Introduction

7

unlikely to be outside the ballpark of norms and values prevailing in the society. The book’s primary focus is on federal appellate judges, including Supreme Court Justices (the subject of Part Three, though discussed in the other parts as well). But there is some discussion of trial judges, state court judges, judges in foreign nations similar to the United States,13 and arbitrators (private judges). I begin with a discussion of the existing theories (attitudinal, strategic, organizational, economic, psychological, sociological, pragmatic, phenomenological, and legalist) of judicial behavior and of the evidence for and against each. These theories are expounded in a rich literature ignored by most academic lawyers (though this is changing14) and by virtually all judges.15 The theories provide background and support to my own analysis, which draws heavily on labor economics and on the psychology of cognition and emotion. It is the stress I lay on psychology that has led me to entitle the book How Judges Think rather than Judicial Behavior. My analysis and the studies on which it builds find that judges are not moral or intellectual giants (alas), prophets, oracles, mouthpieces, or calculating machines. They are all-too-human workers, responding as other workers do to the conditions of the labor market in which they work. American judges, at least, are not formalists, or (the term I prefer, as it carries less baggage) legalists. Legalists decide cases by applying preexisting rules or, in some versions of legalism, by employing allegedly distinctive modes of legal reasoning, such as “legal reasoning by analogy.” They do not legislate, do not exercise discretion other than in ministerial matters (such as scheduling), have no truck with policy, and 13. That is, nations that have an independent judiciary, as many do not. See, for example, Gretchen Helmke, Courts under Constraints: Judges, Generals, and Presidents in Argentina (2005); Law and Economic Development (Hans-Bernd Schäfer and Angara V. Raja eds. 2006). 14. See, for example, Gregory C. Sisk and Michael Heise, “Judges and Ideology: Public and Academic Debates about Statistical Measures,” 99 Northwestern University Law Review 743 (2005). 15. The richness is well illustrated by James L. Gibson, “From Simplicity to Complexity: The Development of Theory in the Study of Judicial Behavior,” 5 Political Behavior 7 (1983). As the date of his article shows, the literature has been around for many years. That it has not caught on with the legal professoriat may be in part because of its death of implications for the understanding or reform of legal doctrine and in part because it challenges the mystique of an apolitical judiciary, in which lawyers and law professors are heavily invested.

8

Introduction

do not look outside conventional legal texts—mainly statutes, constitutional provisions, and precedents (authoritative judicial decisions)—for guidance in deciding new cases. For legalists, the law is an autonomous domain of knowledge and technique.16 Some legalists are even suspicious of precedent as a source of law, because it is infected by judicial creativity. But if judges are not legalists, what are they? Might they simply be politicians in robes? Empirical scholars have found that many judicial decisions, by no means limited to the Supreme Court, are strongly influenced by a judge’s political preferences or by other extralegal factors, such as the judge’s personal characteristics and personal and professional experiences, which may shape his political preferences or operate directly on his response to a case. No responsible student of the judicial system supposes that “politics” (in a sense to be explained) or personal idiosyncrasy drives most decisions, except in the Supreme Court, which indeed is largely a political court when it is deciding constitutional cases. Legalism drives most judicial decisions, though generally they are the less important ones for the development of legal doctrine or the impact on society. But one must be careful about dividing judicial decisions (or judges) into legalist and political, or, what is closely related, asserting a Manichaean dualism between law and politics. The dualism works only when “law” is equated to legalism, and that is too narrow. Justice Scalia was not stepping out of his proper role as a judge when he said in Richardson v. Marsh that “the rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process.”17 This is just as proper a judicial state16. “Legal formalists emphasize the specifically legal virtues of the clarity, determinacy, and coherence of law, and try to sharpen the distinction between legislation and adjudication. Roughly, they can be divided into rule-formalists and concept-formalists. The former place more value on determinacy, emphasizing the importance of clear rules and strict interpretation, while the latter emphasize the importance of system and principled coherence throughout the law.” Thomas C. Grey, “Judicial Review and Legal Pragmatism,” 38 Wake Forest Law Review 473, 478 (2003). Modern American formalists—comprising what one might call the School of Scalia—are mainly rule-formalists. Id. at 479. “The most important thing [for Scalia] is that law should be put in the form of rules wherever possible.” Id. at 499. 17. 481 U.S. 200, 211 (1987).

Introduction

9

ment as the legalist assertions for which Scalia (he of such pronouncements as that the “rule of law” is the “law of rules”18) is more famous. This is so even though the statement has political implications. Criminal defendants are at a disadvantage if a judge’s or prosecutor’s missteps can be forgiven by the judge’s telling the jury to disregard them, for the bell cannot be unrung; the jurors cannot exclude what they should not have heard from their consideration of the defendant’s guilt. “Law” in a judicial setting is simply the material, in the broadest sense, out of which judges fashion their decisions. Because the materials of legalist decision making fail to generate acceptable answers to all the legal questions that American judges are required to decide, judges perforce have occasional—indeed rather frequent—recourse to other sources of judgment, including their own political opinions or policy judgments, even their idiosyncrasies. As a result, law is shot through with politics and with much else besides that does not fit a legalist model of decision making. The decision-making freedom that judges have is an involuntary freedom. It is the consequence of legalism’s inability in many cases to decide the outcome (or decide it tolerably, a distinction I shall elaborate), and the related difficulty, often impossibility, of verifying the correctness of the outcome, whether by its consequences or its logic. That inability, and that difficulty or impossibility, create an open area in which judges have decisional discretion—a blank slate on which to inscribe their decisions—rather than being compelled to a particular decision by “the law.” How they fill in the open area is the fundamental question that this book addresses, though lurking in the background and occasionally coming to the fore is the question how they should fill it in. Although judges often exercise a political judgment in the open area, “political” is an equivocal term that must be carefully parsed before it can be usefully applied to judicial behavior. It could refer to a judge whose decisions reflect his loyalty to a political party. It could refer to a judge whose decisions faithfully mirror the platform of a political party, though as a matter of conviction rather than of party loyalty. It could refer to a judge whose decisions reflect a consistent political ideology, which might be “liberal” or “conservative” and thus correlated (though 18. Antonin Scalia, “The Rule of Law as a Law of Rules,” 56 University of Chicago Law Review 1175 (1989).

10

Introduction

imperfectly) with the Democratic or Republican Party platform, but which might instead be an ideology embraced by neither major party, such as libertarianism or socialism. The empirical literature that refutes legalism as a complete or even approximate description of actual judicial behavior does not distinguish among these different gradations of “political.” “Political” could even describe decisions based on purely technical policy judgments, judgments that involve finding the best means to agreed-upon ends; any issue of governmental policy is in that sense “political.” At the opposite extreme, a judge might be “political” in a sense divorced from policy: he might, like a legislator, use charm, guile, vote trading, and flattery to induce other judges to go along with him, though his aim might be to produce legalistic decisions. (He might thus be what is called in a variety of nonpolitical settings “a good politician.”) The strategic theory of judicial behavior, discussed in chapter 1, emphasizes political judging in this “means” rather than “ends” sense. Many legislators have no policy preferences of their own, but are merely political brokers for their constituents. Judges, however, unless elected, do not have constituents. Ringing changes on the “political” might seem to exhaust the possible nonlegalist factors in adjudication. It does not begin to. The possible other factors (call them “personal”) include personality traits, or temperament (and thus emotionality at one end of the temperament spectrum and emotional detachment at the other end), which are more or less innate personal characteristics. They include personal background characteristics, such as race and sex, and also personal and professional experience. The political or ideological factors that influence adjudication may themselves be by-products of personal factors rather than products of an informed, disinterested, and coolly analytical study of public issues. Also figuring in judicial decisions are strategic considerations, already alluded to, which need not be related to either the political views or the personal characteristics of a judge. A judge might join the majority opinion in a case not because he agreed with it but because he thought that dissenting publicly would magnify the effect of the majority opinion by drawing attention to it. (“Dissent aversion” helps to explain, as we shall see in chapter 1, the puzzling effect of panel composition on appellate decisions.) Institutional factors—such as how clear or unclear the law is, salary and workload, and the structure of judicial promotion—also influence judicial behavior.

1

Nine Theories of Judicial Behavior

There are many positive (that is, descriptive as distinct from normative) theories of judicial behavior.1 Their primary focus is, as one would expect, on explaining judges’ decisions. The theories are the attitudinal, the strategic, the sociological, the psychological, the economic, the organizational, the pragmatic, the phenomenological, and, of course, what I am calling the legalist theory. All the theories have merit and feed into the theory of decision making that I develop in this book. But all are overstated or incomplete. And missing from the welter of theories—the gap this book endeavors to fill, though in part simply by restating and refining the existing theories—is a cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases: in short, a positive decision theory of judging. I begin with the attitudinal theory,2 which claims that judges’ deci1. For reviews of the literature, see Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior, ch. 1 (2006); Barry Friedman, “The Politics of Judicial Review,” 84 Texas Law Review 257 (2005). For an anthology suggestive of the diversity of the literature, see Supreme Court Decision-Making: New Institutionalist Approaches (Cornell W. Clayton and Howard Gillman eds. 1999). 2. See, for example, Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002); Robert A. Carp and Ronald Stidham, Judicial Process in America 294 (2001) (tab. 10–1); William N. Eskridge, Jr., and Lauren E. Baer, “The Supreme Court’s Deference Continuum: An Empirical Analysis (from Chevron to Hamdan)” (Yale Law School, May 11, 2007); Andrew D. Martin, Kevin M. Quinn, and Lee Epstein, “The Median Justice on the United States Supreme Court,” 83 North Carolina Law Review 1275 (2005); Micheal W. Giles, Virginia A. Hettinger, and Todd Peppers, “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas,” 54 Political Research Quarterly 623 (2001); Tracey E. George, “Developing a Positive Theory of Decision Making on U.S. Courts of Appeals,” 58 Ohio State Law

19

20

The Basic Model

sions are best explained by the political preferences that they bring to their cases. Most of the studies that try to test the theory infer judges’ political preferences from the political party of the President who appointed them, while recognizing that it is a crude proxy. The emphasis is on federal judges, in particular Supreme Court Justices. State judges are of course not appointed by the President, and sometimes the method of their appointment—for example, by nonpartisan election—makes it difficult to classify them politically.3 Justices and judges appointed by Democratic Presidents are predicted to vote disproportionately for “liberal” outcomes, such as outcomes favoring employees, consumers, small businessmen, criminal defendants (other than white-collar defendants), labor unions, and environmental, tort, civil rights, and civil liberties plaintiffs. Judges and Justices appointed by Republican Presidents are predicted to vote disproportionately for the opposite outcomes. Other evidence of a judge’s political leanings is sometimes used in lieu of the party of the appointing President, such as preconfirmation editorials discussing the politics or ideology of a judicial nominee.4 A neglected possibility is a fourfold classification in which the intermediate categories would consist of judges appointed when the President and the Senate majority were of different parties (“divided government”). However, Nancy Scherer finds no difference in the decisions of federal district judges appointed by “divided” versus “united” government,5 and I find only a small difference (as shown in Table 16) in the case of federal court of appeals judges appointed by Republican Presidents. But when Journal 1635, 1678 (1998). For criticism, see Frank B. Cross, “Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance,” 92 Northwestern Law Review 251 (1997); Barry Friedman, “Taking Law Seriously,” 4 Perspectives on Politics 261 (2006). 3. Paul Brace, Laura Langer, and Melinda Gann Hall, “Measuring the Preferences of State Supreme Court Judges,” 62 Journal of Politics 387 (2000); Carp and Stidham, note 2 above, at 296–297. 4. Jeffrey A. Segal and Albert D. Cover, “Ideological Values and the Votes of U.S. Supreme Court Justices,” 83 American Political Science Review 557 (1989); Segal et al., “Ideological Values and the Votes of U.S. Supreme Court Justices Revisited,” 57 Journal of Politics 812 (1995). See also Martin, Quinn, and Epstein, note 2 above, at 1285–1300. 5. Nancy Scherer, “Who Drives the Ideological Makeup of the Lower Federal Courts in a Divided Government?” 35 Law and Society Review 191 (2001). 6. Some of the classifications used in the data set from which the statistics in Tables 1 and 2 are drawn are erroneous, such as classifying all votes for plaintiffs in intellectual property cases as “liberal.” I have corrected such errors; for the details of the corrections and a fuller analysis of the data, see William M. Landes and Richard A. Posner, “Judicial Behavior: A Statistical Analysis” (University of Chicago Law School, Oct. 2007).

Nine Theories of Judicial Behavior Table 1

21

Judicial Votes in Courts of Appeals as Function of United versus Divided Presidency and Senate, 1925–2002 (in percent) Republican President

Vote Conservative Liberal Mixed

Democratic President

Republican Senate

Democratic Senate

Democratic Senate

Republican Senate

55.8 37.1 7.1

55.9 35.9 8.2

49.6 43.5 6.8

55.3 37.9 6.8

Sources: Appeals Court Attribute Data, www.as.uky.edu/polisci/ulmerproject/auburndata.htm (visited July 17, 2007); U.S. Court of Appeals Database, www.as.uky.edu/polisci/ulmerproject/ appctdata.htm, www.wmich.edu/⬃nsf-coa/ (visited July 17, 2007). Votes were weighted to reflect the different caseloads in the different circuits. “Mixed” refers to multi-issue cases in which the judge voted the liberal side of one or more issues and the conservative side of the other issue or issues.

Table 2

Judicial Votes in Courts of Appeals as Function of United versus Divided Presidency and Senate, Judges Serving Currently (in percent) Republican President

Vote Conservative Liberal Mixed

Democratic President

Republican Senate

Democratic Senate

Democratic Senate

Republican Senate

66.9 25.6 7.5

63.2 27.0 9.8

49.7 39.5 10.9

57.0 35.6 7.5

Sources: Appeals Court Attribute Data, www.as.uky.edu/polisci/ulmerproject/auburndata.htm (visited July 17, 2007); U.S. Court of Appeals Database, www.as.uky.edu/polisci/ulmerproject/ appctdata.htm, www.wmich.edu/⬃nsf-coa/ (visited July 17, 2007). Votes were weighted to reflect the different caseloads in the different circuits. “Mixed” refers to multi-issue cases in which the judge voted the liberal side of one or more issues and the conservative side of the other issue or issues.

the President is a Democrat, it makes a significant difference whether the Senate is Democratic or Republican, probably because the Republican Party is more disciplined than the Democratic Party and therefore better able to organize opposition to a nominee. Table 2 is similar to Table 1 except limited to currently serving judges. Notice that the effects of divided government on judicial voting are more pronounced than in Table 1, consistent with the strong Republican push beginning with Reagan to tilt the ideological balance of the courts rightward. Notice also that federal judicial decisions as a whole tilt toward

22

The Basic Model

Table 3

Ideology of Currently Serving Justices and the Appointing President President’s Ideology

Justice’s Ideology

Conservative Republican

Moderate Republican

Democratic

4 0

1 2

0 2

Conservative Liberal

Table 4

Conservative and Liberal Supreme Court Justices as Function of United versus Divided Presidency and Senate, Justices Serving Currently Republican President

Justice Conservative Liberal

Democratic President

Republican Senate

Democratic Senate

Democratic Senate

Republican Senate

3 0

2 2

0 2

0 0

the conservative end of the spectrum and that the tilt is more pronounced among currently serving judges. Presidents differ in their ideological intensity, and taking account of that difference can improve the accuracy of the attitudinal model. Seven of the nine current Supreme Court Justices were appointed by Republican Presidents, but it is more illuminating to note that four conservative Justices were appointed by conservative Republicans (Scalia and Kennedy by Reagan, and Roberts and Alito by the second Bush), two liberal Justices by a Democratic President (Ginsburg and Breyer, appointed by Clinton), and one liberal and two conservative Justices appointed by moderate Republicans (Stevens by Ford, Souter and Thomas by the first Bush). See Table 3. There is also a divided-government effect in Supreme Court appointments, as shown in Table 4. Whatever the method of determining a judge’s political inclinations, and whatever the level of the judiciary (Supreme Court, federal courts of appeals—on which there is now an extensive literature7—or federal dis7. Christina L. Boyd, Lee Epstein, and Andrew D. Martin, “Untangling the Causal Effects of Sex on Judging” (Northwestern University School of Law and Washington University School of Law and Department of Political Science, July 28, 2007); Cass R. Sunstein et al., Are Judges Po-

Nine Theories of Judicial Behavior

23

trict courts8), the assumed inclinations are invariably found to explain much of the variance in judges’ votes on politically charged issues. The hotter the issue (such as abortion, which nowadays is much hotter than, say, criminal sentencing), the greater the explanatory power of the political variable. The attitudinal theory is further supported by the unquestionable importance of politics in the appointment and confirmation of federal judges;9 by the intensity of congressional battles, almost always politically polarized, over the confirmation of federal judges and particularly Supreme Court Justices; and by the experiences of lawyers and judges. Every lawyer knows that the accident of which judges of a court of appeals are randomly drawn to constitute the panel that will hear his case may determine the outcome if the case is controversial. Every judge is aware of having liberal and conservative colleagues whose reactions to politically charged cases can be predicted with a fair degree of accuracy even if the judge who affixes these labels to his colleagues would not like to be labeled politically himself. Further evidence is the tendency of both Supreme Court Justices and court of appeals judges to time their retirement in such a way as to maximize the likelihood that a successor will be appointed by a President of litical? An Empirical Analysis of the Federal Judiciary (2006); Thomas J. Miles and Cass R. Sunstein, “Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron,” 73 University of Chicago Law Review 823 (2006); Ward Farnsworth, “The Role of Law in Close Cases: Some Evidence from the Federal Courts of Appeals,” 86 Boston University Law Review 1083 (2006); Jeffrey A. Segal, Harold J. Spaeth, and Sara C. Benesh, The Supreme Court in the American Legal System 236–242 (2005); Daniel R. Pinello, Gay Rights and American Law (2003); Frank B. Cross, “Decision Making in the U.S. Circuit Courts of Appeals,” 91 California Law Review 1457, 1504–1509 (2003); David E. Klein, Making Law in the United States Court of Appeals (2002); Emerson H. Tiller and Frank B. Cross, “A Modest Proposal for Improving American Justice,” 99 Columbia Law Review 215, 218–226 (1999); George, note 2 above; Richard L. Revesz, “Environmental Regulation, Ideology, and the D.C. Circuit,” 83 Virginia Law Review 1717 (1997); Sheldon Goldman, “Voting Behavior on the United States Courts of Appeals Revisited,” 69 American Political Science Review 491 (1975). For an interesting case study of how the political preferences of court of appeals judges affect decisions, see Paul J. Wahlbeck, “The Development of a Legal Rule: The Federal Common Law of Public Nuisance,” 32 Law and Society Review 613 (1998). 8. C. K. Rowland and Robert A. Carp, Politics and Judgment in Federal District Courts (1996); Gregory C. Sisk, Michael Heise, and Andrew P. Morriss, “Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning,” 73 New York University Law Review 1377 (1998); Ahmed E. Taha, “Judges’ Political Orientations and the Selection of Disputes for Litigation” (Wake Forest University School of Law, Jan. 2007), http://ssrn.com/abstract= 963468 (visited Sept. 2, 2007). 9. On which see, for example, Lee Epstein and Jeffrey A. Segal, Advice and Consent: The Politics of Judicial Appointments (2005); John R. Lott, Jr., “The Judicial Confirmation Process: The Difficulty with Being Smart,” 2 Journal of Empirical Legal Studies 407 (2005).

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The Basic Model

the same party as the one who appointed the retiring Justice.10 Still another bit of evidence is what might be called “ideology drift”—the tendency of judges to depart from the political stance (liberal or conservative) of the party of the President who appointed them the longer they serve.11 A judge closely aligned with the ideology of the party of the President who appointed him may fall out of that alignment as new, unforeseen issues arise. A judge who was conservative when the burning issues of the day were economic may turn out to be liberal when the burning issues become ones of national security or social policy such as abortion or homosexual rights. There is more: the outcome of Supreme Court cases can be predicted more accurately by means of a handful of variables, none of which involves legal doctrine, than by a team of constitutional law experts.12 While there is a high correlation between how a given federal appellate judge (court of appeals judge as well as Supreme Court Justice) votes for the government in nonunanimous (hence “close”) constitutional criminal cases and in nonunanimous statutory criminal cases, there is a low correlation between the votes of different judges for and against the government in criminal cases.13 Some judges have a progovernment lean10. Ross M. Stolzenberg and James Lindgren, “Politicized Departure from the United States Supreme Court” (University of Chicago and Northwestern University, Mar. 18, 2007); James F. Spriggs and Paul J. Wahlbeck, “Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893–1991,” 48 Political Research Quarterly 573 (1995); Deborah J. Barrow and Gary Zuk, “An Institutional Analysis of Turnover in the Lower Federal Courts, 1900–1987,” 52 Journal of Politics 457, 467–468 (1990). Another straw in the wind is the surprising finding in a recent study that Supreme Court law clerks’ self-described political identity (Democratic or Republican) influences the political valence of their Justices’ votes. Todd C. Peppers and Christopher Zorn, “Law Clerk Influence on Supreme Court Decision Making” (Roanoke College, Department of Public Affairs, and University of South Carolina, Department of Political Science, June 14, 2007). 11. See Andrew D. Martin and Kevin M. Quinn, “Assessing Preference Change on the US Supreme Court,” 23 Journal of Law, Economics and Organization 365 (2007); Susan Haire, “Beyond the Gold Watch: Evaluating the Decision Making of Senior Judges on the U.S. Courts of Appeals” (University of Georgia, Department of Political Science, 2006). 12. Andrew D. Martin et al., “Competing Approaches to Predicting Supreme Court Decision Making,” 2 Perspectives on Politics 761 (2004); Theodore W. Ruger et al., “The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking,” 104 Columbia Law Review 1150 (2004). The variables are “(1) circuit of origin; (2) issue area of the case; (3) type of petitioner (e.g., the United States, an employer, etc.); (4) type of respondent; (5) ideological direction (liberal or conservative) of the lower court ruling; and (6) whether the petitioner argued that a law or practice is unconstitutional.” Id. at 1163. 13. Ward Farnsworth, “Signatures of Ideology: The Case of the Supreme Court’s Criminal Docket,” 104 Michigan Law Review 67 (2005); Farnsworth, note 7 above.

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ing, others a prodefendant leaning, and these leanings appear to be what drives their votes in close cases whether the case arises under the Constitution or under a statute—though from a legalist standpoint the text of the enactment being applied ought to drive the outcome, and there are huge textual differences between the Constitution and statutes. Apolitical judges would not be expected to vote the same way in both types of case. All this is not to say that all judicial votes are best explained as politically motivated,14 let alone that people become judges in order to nudge policy closer to their political goals. We shall see in subsequent chapters that to explain the political cast of judicial decisions does not require assuming that judges have conscious political goals. No attitudinal study so finds, and data limitations cannot explain the shortfalls. Even at the level of the U.S. Supreme Court many cases do not involve significant political stakes, but that cannot be the entire explanation either. Think of Oliver Wendell Holmes. The publication of his correspondence after his death revealed that he was a rock-ribbed Republican, yet he voted repeatedly to uphold liberal social legislation (such as the maximumhours law at issue in the Lochner case, in which he famously dissented) that he considered socialist nonsense. He may of course have been an exception among Supreme Court Justices in this as in so many other respects. He may have few successors in point of political detachment in today’s more politicized legal culture. We get a sense of the attitudinal model’s predictive limitations in Tables 5 and 6, in which judicial votes that lack any political valence are coded as “other,” and the liberal, conservative, mixed, and other votes are correlated with the party of the President who appointed the judge who cast the vote. Notice that apart from the substantial percentage of votes that were either mixed or other, a large percentage of conservative votes were cast by putatively liberal judges (judges appointed by Democratic Presidents) and a large percentage of liberal votes were cast by putatively conservative judges. Notice, as in the earlier tables, the apparent trend toward the increased politicization of court of appeals voting re14. See, for example, Cross, note 7 above; Cross, note 2 above, at 285–311; Sunstein et al., note 7 above; Daniel R. Pinello, “Linking Party to Judicial Ideology in American Courts: A Meta-Analysis,” 20 Justice System Journal 219 (1999); C. Neal Tate and Roger Handberg, “Time Binding and Theory Building in Personal Attribute Models of Supreme Court Voting Behavior, 1916–88,” 35 American Journal of Political Science 460 (1991); Sheldon Goldman, “Voting Behavior on the United States Courts of Appeals Revisited,” 69 American Political Science Review 491 (1975).

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The Basic Model

Table 5

Judicial Votes in Courts of Appeals as Function of Party of Appointing President, 1925–2002 (in percent)

Vote Conservative Liberal Mixed Other

Republican President

Democratic President

42.2 28.1 5.9 23.9

37.6 33.3 5.1 23.9

Sources: Appeals Court Attribute Data, www.as.uky.edu/polisci/ulmerproject/auburndata.htm (visited July 17, 2007); U.S. Court of Appeals Database, www.as.uky.edu/polisci/ulmerproject/ appctdata.htm, www.wmich.edu/⬃nsf-coa/ (visited July 17, 2007). Votes were weighted to reflect the different caseloads in the different circuits. “Mixed” refers to multi-issue cases in which the judge voted the liberal side of one or more issues and the conservative side of the other issue or issues.

Table 6

Judicial Votes in Courts of Appeals as Function of Party of Appointing President, Judges Serving Currently (in percent)

Vote Conservative Liberal Mixed Other

Republican President

Democratic President

51.2 22.9 7.3 18.7

42.5 33.1 7.6 16.9

Sources: Appeals Court Attribute Data, www.as.uky.edu/polisci/ulmerproject/auburndata.htm (visited July 17, 2007); U.S. Court of Appeals Database, www.as.uky.edu/polisci/ulmerproject/ appctdata.htm, www.wmich.edu/⬃nsf-coa/ (visited July 17, 2007). Votes were weighted to reflect the different caseloads in the different circuits. “Mixed” refers to multi-issue cases in which the judge voted the liberal side of one or more issues and the conservative side of the other issue or issues.

sulting from judicial appointments by Republican Presidents. But notice, too, that the differences between the two types of judge, exhibited in the first two rows of the tables, though significant, are only partial. And a comparison just of means obscures the fact that the distributions overlap; some judges appointed by Republican Presidents are less conservative than some appointed by Democratic Presidents. This does not refute the attitudinal model, but it does highlight the fact that the party of the appointing President is an imperfect proxy for a judge’s judicial ideology. One reason is that ideological issues important to judges need

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not have salience in political campaigns; capital punishment is a current example. Another reason is that judges pride themselves on being politically independent rather than party animals. An explanation for the attitudinal model’s predictive limitations that would hold even if all decisions involved significant political stakes is that a case may pose a conflict between two political values, both of which are important to a judge, as when, for example, a civil rights suit (liberal) is brought challenging affirmative action (a conservative bête noire). One might think that in such a case the political considerations would cancel and the decision could be attributed to conventional legal reasoning. But no; the political considerations are unlikely to weigh equally in the judge’s mind, and if they do not, the heavier may determine his decision. A notable example is Buchanan v. Warley.15 Decided at a time when the Supreme Court was strongly disinclined to invalidate racially discriminatory laws, it nevertheless invalidated a southern ordinance that forbade blacks to live on any block in which whites were in the majority, and vice versa. The ordinance had blocked the plaintiff, a white, from selling property to a black. The Court distinguished mere “social rights”—the right of blacks to associate with whites (and likewise of whites not to associate with blacks, a “right” that the whites who remained in the neighborhood were denied), which the Court had refused to recognize in Plessy v. Ferguson—from “those fundamental rights in property” that the Fourteenth Amendment was intended to secure to blacks on equal terms with whites.16 The distinction is not found in the equal protection clause. Michael Klarman argues persuasively that the Court simply thought government interference with property rights a worse affront to personal liberty than segregation of schools and other public facilities, especially since the person complaining that his property rights were being infringed was the white seller.17 The upshot was that the Court issued a liberal decision, rejecting racial segregation in private housing. The attitudinalists’ traditional preoccupation with politically charged cases decided by the Supreme Court creates an exaggerated impression of the permeation of American judging by politics.18 Most cases decided 15. 245 U.S. 60 (1917). 16. Id. at 79. 17. Michael J. Klarman, Unfinished Business: Racial Equality in American Law 83–84 (2007). 18. Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy 187, 188 n. 22, 192 (2007).

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The Basic Model

by American courts are neither politically charged nor decided in the Supreme Court. And to use the political party of the appointing President as a proxy for a Justice’s political inclinations misleadingly implies that partisan politics pervades Supreme Court decision making. A President invariably appoints most judges (usually more than 90 percent) from among members of his own political party, but once appointed they are more likely to want to be good judges than to want to toe anyone’s political line. You do not find judges saying, even to themselves, “How would Bill Clinton [or George Bush, etc.], who appointed me, decide this case?” Nevertheless, in the frequent cases in which a political judgment is required to “close the deal” because legalist analysis of the case leads nowhere, the judge is likely to lean toward the position that the political party to which he belongs (or belonged) would support, for it is usually not an accident that he belongs to that party rather than another. But “lean toward” is different from “identify with.” Supreme Court Justices are political, but politically independent. Most of them, indeed, are outside (either more liberal or more conservative) the range bounded by the political preferences of the President and the Senate that confirmed them.19 Any amount of political judging challenges orthodox conceptions of the judicial process, however, and the attitudinalists have shown that there is plenty at all levels of the American judiciary (though more, the higher the level). Yet their findings, while heresy to the legal establishment, have the paradoxical effect of blunting criticisms of the courts as acting undemocratically when they invalidate legislative and executive acts. As explained by Mark Graber, Judicial review is established and maintained by elected officials. Adjudication is one of many means politicians and political movements employ when seeking to make their constitutional visions the law of the land. Elected officials provide vital political foundations for judicial power by creating constitutional courts, vesting those courts with jurisdiction over constitutional questions, staffing those courts with judges prone to exercising judicial power, assisting or initiating litigation aimed at having those courts declare laws unconstitutional, and passing legislation that encourages justices to make public policy in the guise of statutory or constitutional interpretation. Judicial review 19. Michael Bailey and Kelly H. Chang, “Comparing Presidents, Senators, and Justices: Interinstitutional Preference Estimation,” 17 Journal of Law, Economics and Organization 477, 508 (2001).